IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17860 of 2010(O)
1. R.RAMANAN, S/O.RAJAN,
... Petitioner
Vs
1. P.L.PRASANNA, D/O.LEKSHMIKUTTY
... Respondent
For Petitioner :SRI.B.MOHANLAL
For Respondent :SRI.V.V.RAJA
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :24/06/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.17860 of 2010
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Dated this the 24th day of June, 2010
J U D G M E N T
Order passed by learned Principal Sub Judge, Kollam refusing
to review an order rejecting the plaint for non-payment of
balance court fee is under challenge in this Writ Petition.
Petitioner-plaintiff claimed to have entered into an agreement with
respondent-defendant for purchase of property belonging to the
latter for Rs.46,00,000/- and claimed to have paid Rs.7,00,000/-
by way of advance to the respondent. According to the petitioner
a further sum of Rs.1,50,000/- also was paid to the respondent.
Since respondent did not perform her part of the contract
petitioner filed O.S. No.979 of 2008 for return of advance money
with interest. Respondent disputed claim of petitioner. After
issues were framed the case was posted for payment of balance
court fee on 25.05.2010. Balance court fee was not paid on that
day. There was also no representation for petitioner. Learned Sub
Judge rejected the plaint for the said reasons. Petitioner filed I.A.
No.1666 of 2010 for review of the order rejecting plaint. In the
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affidavit in support of that application petitioner stated that since
clerk of the counsel concerned wrongly noted posting date as
25.06.2010 instead of 25.05.2010 there happened to be no
representation in court on 25.05.2010 and balance court fee
was not paid on that day. Application was opposed by the
respondent. Learned Principal Sub Judge held that ground stated
is that the Advocate clerk had mistakenly noted the posting date
as 25.06.2010 instead of 25.05.2010, it is a usual ground now
being taken in almost all cases of similar nature, there is no error
apparent on the face of order to review it and dismissed the
application. That order is under challenge in this Writ Petition.
Learned counsel for petitioner contended that sufficient grounds
were made out to review the order rejecting plaint on
25.05.2010. But learned Sub Judge on a generalised view that
grounds stated are as seen taken in other cases also dismissed
the application for review. Learned counsel states that this is a
case where a claim is made for recovery of Rs.8,50,000/- with
interest and costs and that on account of a mistake committed
by the clerk of counsel concerned plaint is rejected and that has
benefited the respondent who received substantial amount from
petitioner. Learned counsel for respondent contended that no
W.P(C) No.17860 of 2010
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sufficient ground for review as contemplated in Order XLVII Rule
1 of the Code of Civil Procedure (for short, “the Code”) has been
made out and hence dismissal of I.A.No.1666 of 2010 does not
call for interference.
2. The question is whether petitioner has made out
sufficient grounds to review the order dated 25.05.2010 rejecting
plaint for non-payment of balance court fee. As I stated above
petitioner explained that clerk of his counsel mistook the date of
posting of the case as 25.06.2010 instead of 25.05.2010 and
hence there happened to be no representation in court and non-
payment of balance court fee on 25.05.2010. It is not as if such
mistakes cannot occur while dealing with so many cases. I do not
also find reason to think that reason stated is untrue. I am also
not inclined to think that petitioner who made a claim for
Rs.8,50,000/- with interest and costs and paid one-tenth of the
court fee (Rs.10,480/-) would purposely remain absent on the
relevant day, would not pay the balance court fee and ensure
that his case is rejected. I am persuaded to accept the
explanation given by petitioner for what happened on 25.05.2010.
3. Then the next question is whether the ground
stated is sufficient to order review under Order XLVII Rule 1 of the
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Code. May be there is no error apparent on the face of the order
rejecting plaint. But that provision also provides other grounds for
review. Apart from the enumerated grounds stated, existence of
“any other sufficient reason” also affords sufficient ground for
review. No doubt the expression “any other sufficient reason” has
to be read ejusdem generis following the enumerated grounds
stated, i.e., error apparent on the face of record or discovery of a
new and important matter or evidence. Here, petitioner was
under the impression that his case was posted on 25.06.2010 but
it was actually posted on 25.05.2010 and disposed of on that day.
That I believe is sufficient to bring the matter within the mischief
of Order XLVII Rule 1 of the Code.
4. Learned Sub Judge has not considered whether
explanation given by petitioner could be accepted or not. Instead
on a generalised view that in almost all cases such explanations
are put up, the explanation offered by petitioner was rejected
which I believe was not justified. Having heard counsel on both
sides I am satisfied that dismissal of I.A.No.1666 of 2010 is not
justified and it is liable to be set aside.
Resultantly, this Writ Petition is allowed. Exhibit P5, order
dismissing I.A.No.1666 of 2010 is set aside and that application
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is allowed. Petitioner is granted a month’ s time from this day to
pay the balance court fee in the trial court. Parties shall appear
in the trial court on 22.07.2010.
THOMAS P. JOSEPH, JUDGE.
vsv